72 Ark. 29 | Ark. | 1903
(after stating the facts.) If an}' cause of action was stated in the complaint, the demtlrrer should have been overruled. A demurrer to the whole complaint, if either paragraph slates a cause of action, should be overruled. Cairo & F. Rd. Co. v. Parks, 32 Ark. 131; Warner v. Capps, 37 Ark. 34.
This was a complaint for the marshaling of assets. The appellant stated that he bought and paid cash for land, and that another party had a mortgage on the same land and various other property, which he alleged was sufficient to pay the amount for which it was mortgaged, and prayed that this property mortgaged, other than that which he had bought and paid for, should be first sold to pay the amount due upon the mortgage. This should have been done. It would have been inequitable to sell the property bought by complainant to satisfy the amount due upon the mortgage upon it and other property included in the mortgage without first exhausting that upon which the appellant had no lien or claim. ■' Where a party has a lien upon two funds, and another party has a lien upon one of them, the party having the lien upon both may be compelled to first exhaust that upon which the other party has no lien. If this satisfies his debt, the other party is afforded an opportunity to be protected in his demand. This could work no injustice, and would afford protection to the one having rights that could not be otherwise protected. 1 Story, Eq. Jurisprudence, § 633; Marr v. Lewis, 31 Ark. 203; Terry v. Rosell, 32 Ark. 478; Bourland v. Wittich, 38 Ark. 167; Howell v. Duke, 40 Ark. 102.
Reversed and remanded, with directions to overrule the demurrer.